Adam Liptak's Sidebar column in the New York Times today, "A Rare But Grudging Judicial About-Face in Bias Case," tells the story of an 11th Circuit Court of Appeals panel's reconsideration this month of its decision last year that the use of the word "boy" by a white manager referring to adult black male employees had "no racial overtones." Here is the opinion upon reconsideration, reinstating a $1.4M verdict in the employee's favor, and here is the unpublished opinion it reversed. Liptak calls the new opinion "opaque and grudging," reflecting a view that the opinion's explanation for the signatories' change of heart was less than clear and forthright, and that the real explanation for the reversal was the embarrassment of a politically and critically unpopular decision.
A brief filed by 11 civil rights leaders in support of reconsideration said that "boy" is "either a proxy for or 'at the very least a close cousin' of the n-word. Liptak's story recounts how that point was made at trial. Note how the conventional and understandable avoidance of using the actual n-word in telling the story dilutes its import and momentarily injects an element of ambiguity:
“You know,” Anthony Ash, a black Tyson worker, testified in 2007, “being in the South, and everybody know being in the South, a white man says ‘boy’ to a black man, that’s an offensive word.”
“You might as well use the N-word if you are going to say that,” Mr. Ash added.
Then the lawyer uttered the word itself.
A word so powerful it can't be used, even when the very point is how powerful it is.
